For those who are interested in obtaining a general
understanding of water rights law, we provide the following summary
below. The summary is not intended to be complete and should be
viewed as legal information only, and not as legal advice. Those
who need to apply it to a particular factual situation should seek
the advice of this office or other qualified legal professionals,
as the presence of subtle, seemingly inconsequential facts can significantly
change the legal analysis. Please read our disclaimer.

Appropriative Water Rights

Generally speaking, there are two types of appropriative
water rights recognized in California—pre-1914, and post-1914.

Pre-1914

In 1872, the California Legislature enacted sections
1410 through 1422 of the California Civil Code. These code sections
were in effect until December 19, 1914, hence the name “pre-1914.”
These sections established the procedure for fixing the priority
of an appropriation of water. Generally, the person intending to
obtain the right was required to first post a notice of appropriation
at the proposed point of diversion and then to later record a copy
of the notice with the appropriate County Recorder. If these procedures
were not followed, the priority of the appropriative right did not
attach until the water was beneficially used. (Duckworth v. Watsonville
Water Co. (1910) 158 Cal. 206, 110 P. 927).

Once acquired, a pre-1914 appropriative right
can be maintained only by continuous beneficial use of the water.
The right is not fixed by the amount claimed in the original notice
of appropriation; the notice of appropriation really only fixes
the date of priority. The amount of the right is fixed by the amount
that can be shown to be actually beneficially used as to both amount
and season of diversion.

The rights acquired under a pre-1914 water right
can be lost. The conditions under which this may occur are discussed
below, under “Loss of Appropriative Water Rights.”

In order to provide notice to others of the existence
of a pre-1914 water right, it is recommended that one who asserts
owning such a right file with the State Water Resources Control
Board a “Statement of Water Diversion and Use.”

Post-1914

On December 19, 1914, the California Legislature
adopted Division 2, Part 2 of the California Water Code. The enactment
of Division 2 fundamentally changed the procedures for obtaining
an appropriative water right.

The steps, generally, that now must be taken in
order to initiate and acquire an appropriative water right are as
follows:

a. File an Application to Appropriate Water with the State Water
Resources Control Board.

b. File an Environmental Information form with the Application.

c. Submit a map of the area (which may have to be drawn by a registered
civil engineer depending upon the size of the appropriation sought).

d. Include a $1000 application fee to the State Water Resources
Control Board and an $850 application fee to the Department of Fish
and Game.

e. Enter into a Memorandum of Understanding with the State Water
Resources Control Board for the preparation of environmental documents.

The application forms can be obtained from the
State Water Resources Control Board, located at 1001 I Street, Sacramento,
CA, or on the internet. The steps described above can become very
complicated and any person who would like to apply for a water right
should contact an attorney who is familiar with them. Supplying
incorrect or incomplete information during these steps can forever
prejudice a hopeful applicant and result in unnecessary costs or
the denial of the application.

There are two special subsets of appropriative
water rights called a “small domestic registration,”
and a “small livestock stockpond registration.” These
“registrations” allow a person to obtain a permit for
the appropriation of water, if water is available, for these uses
as long as the amount of water sought does not exceed 4500 gallons
per day or 10 acre-feet per year. The processing of these two types
of rights is streamlined and does not normally require as much documentation
as the typical appropriative water right application.

Loss of Appropriative Rights

Abandonment: To constitute abandonment of an appropriative
right, there must be the intent and the actual relinquishment of
the right. Thus, abandonment must be voluntary. (Black’s Law
Dictionary, 6th Ed.)

Nonuse: Nonuse is different from abandonment. Nonuse
simply means the failure to put the water to beneficial use for
a period of five years. It is also called a "forfeiture." (Water Code Section 1241; Lindblom v. Round Valley Water Co. (1918)
178 Cal. 450; 173 P. 994, North Kern Water Storage Dist. v. Kern Delta Water Dist. (2007) 147 Cal.App.4th 555, 54 Cal.Rptr.3d 578.).

Riparian Rights

The riparian right arose, depending upon the historian
consulted, from the Code Napoleon (Samuel Weil, Water Rights in
the Western United States (3d ed. 1911)), or from early English
common law (Arthur Maass & Hiller Zobel, Anglo-American Water
Law: Who Appropriated the Riparian Doctrine? 10 Pub. Pol’y
109 (1961)), and it was later incorporated in the California Constitution.
Generally, lands that are traversed or border upon a natural watercourse
may be riparian. California Court cases hold that each riparian
has a right that is “correlative” with other riparians.
Thus, each must share the water from that source (Pleasant Valley
Canal Co. v. Borror (1998) 61 Cal.App. 4th 742, 72 Cal.Rptr. 2d
1). The guidelines below outline the rights and obligations associated
with a riparian right.

a. The extent of lands having riparian status is
determined by three criteria: (1) The land in question must be contiguous
to the stream. The length of frontage is an immaterial factor. (2)
The riparian right extends only to the smallest tract held under
one title in the chain of title leading to the present owner. (3)
The land, in order to be riparian, must be within the watershed
of the stream. (Rancho Santa Margarita v. Vail (1938) 11 Cal.2d
501, 81 P.2d 533).

b. As to any owner below the confluence of two branches of a stream,
the drainage areas of both branches must be deemed to constitute
a single watershed and the owner riparian to both branches. (Holmes
v. Nay (1921) 186 Cal. 231, 199 P. 325).

c. A riparian owner may, for the more convenient use of the water
on his riparian land, go upon the land of another farther up the
stream, with the consent of such landowner, and there divert the
water for use upon the land below. (Turner v. James Canal Co. (1909)
155 Cal. 82; 99 P. 520).

d. A riparian is only authorized to use that amount of water that
is both reasonable and beneficial. (Sec. 3, Art. XIV, Constitution
of California, California Water Code §§ 100, 101.)

g. The riparian right is neither created by use nor lost by non-use.
(Lux v. Haggin (1886) 69 Cal. 255, 10 P. 674).

h. If there is insufficient water for the reasonable beneficial
requirements of all riparian owners, they must share the available
water supply. Apportionment is governed by the circumstances of
each case, including each owner’s reasonable requirements
and particular uses. A riparian owner who uses water for domestic
purposes (household use, watering of domestic animals, etc.) may
take the whole supply over one who uses it for other purposes. (Deetz
v. Carter (1965) 232 Cal.App.2d 851, 43 Cal.Rptr. 321).

j. A riparian right is subject to those appropriative rights that
were perfected, as the result of the diversion of water, prior to
the date of vesting of the riparian right, which is when the grant
from the United States government was obtained. Otherwise a riparian
right is generally superior in right to an appropriative right.
(Haight v. Costanich (1920) 184 Cal. 426; 194 P. 26; Pleasant Valley
Canal Co. v. Borror (1998) 61 Cal.App. 4th 742, 72 Cal.Rptr. 2d
1).

k. The riparian right cannot be transferred for use upon a nonriparian
parcel of land. (Holmes v. Nay (1921) 186 Cal. 231, 199 P. 325).

l. The riparian right does not apply to foreign water; i.e. water
originating in a different water shed, or stored and released by
another user. (Stevinson Water District v. Roduner (1950) 36 Cal.2d
264, 223 P.2d 209; Bloss v. Rahilly (1940) 16 Cal. 2d 70; 104 P.2d
1049).

m. A riparian right does not grant the right to store the water
for seasonal use (generally greater than 30 days). (Colorado Power
Co. v. Pacific Gas & Electric Co. (1933) 218 Cal. 559; 24 P.2d
495).

Prescription

Generally speaking, the priority of an appropriative
water right is “first in time, first in right;” therefore
an appropriative water right is subordinate and subject to all prior
vested rights, whether appropriative or riparian. Prescription is
a legal doctrine that allows a water user to overcome a prior water
right held by another. Thus, if a junior water right holder diverts
water that is lawfully entitled to a senior water right holder,
the junior may become entitled to that water if the diversion satisfies
a number of requirements.

First, the use by the junior must be continuous and uninterrupted
for a period of five years. Second, during those five years, the
use must be open and notorious, exclusive, under claim of right,
hostile and adverse to the title of the senior owner, and an invasion
of the senior owner’s right. Third, the senior owner must
have had an opportunity to prevent the adverse use by legal action,
and any taxes that are assessed on the water must be paid by the
junior. Absence of any of these conditions is fatal to the acquisition
of a prescriptive water right.

Water users are ordinarily not concerned with
the use of water by others after it has passed their land or point
of diversion. Thus, a prescriptive water right ordinarily cannot
be acquired against an upstream user.

A right cannot be acquired by prescription to
use a greater quantity of water than is reasonably necessary for
the beneficial purpose served, regardless of the amount actually
used.

It is important to note that the prescription
doctrine described above relates as between two fully permitted
appropriative water right owners, or a riparian or permitted appropriative
water right owner. It is currently unclear whether an unpermitted
appropriative water right user can obtain a prescriptive water right
against a permitted water right holder or riparian. Since enactment
of Division 2, Part 2 of the California Water Code, a right to appropriate
or use water cannot be secured without first obtaining a permit
from the State. However, this right may only apply as against the
State, and may not be required to obtain a right against another
lawful user. (People v. Shirokow (1980) 26 Cal.3d 301).

Vested Appropriative and Riparian Rights Cannot
be Injured by Subsequent Filings for Water Right

Pursuant to Water Code Section 1702, vested appropriative
and riparian rights cannot be impaired by the issuance of a new
water right. A permit, if issued to the applicant, will limit the
water to be appropriated so that the new permit will not injure
existing rights. The priority of the right acquired will be the
filing date of the application.

Disputes Over Use of Water

The right to use water is a “usufructory”
property right and is protected in a number of ways. The individual
who believes their water right is being infringed upon may file
a complaint with the State Water Resources Control Board (the “Board”),
or may institute court action. The Board, if consulted, may investigate
and possibly fine the wrongful user if it finds that an individual
is using water unlawfully. If a suit is instituted in court, the
court may enjoin the wrongful user, or it may award damages to the
rightful user of the water if it finds that an individual is using
water in a manner that is wrongfully denying another the use of
the water.

Note that the Board will not become involved in a dispute concerning
the validity or exercise of a pre-1914 or riparian right, only a
court of competent jurisdiction may do so. Generally, the Board’s
authority to determine the validity of a water right extends only
to appropriative water rights initiated post-1914, unless petitioned
by one or more claimants to engage in a statutory stream adjudication,
in which case the Board is empowered to determine all rights to
water of a stream system whether based upon appropriation, riparian
right, or other basis of right. (California Water Code § 2501).
Such adjudications are extraordinarily time consuming and expensive.

Groundwater

Jurisdiction over groundwater is generally left
to the county within which the groundwater lies. The jurisdiction
of the State Water Resources Control Board extends only to surface
water and subterranean streams flowing through known and definite
channels. (Water Code § 1200).

Generally, landowners have the right to withdraw
water from an underground aquifer for reasonable beneficial use
on their overlying land. This right to withdraw water is correlative
(similar to a riparian right holder’s) with all the other
landowners overlying the same aquifer.

Spring Water

With respect to a spring which has no natural
outlet, the owner of the land in which it lies, under ordinary circumstances,
owns the water as completely as he does the soil. (State of California
v. Hanson (1961) 189 Cal. App. 2d 604; 11 Cal. Rptr. 335). Such
water may be used without obtaining a permit from the State Water
Resources Control Board; however, a Statement of Water Diversion
and Use should be filed with the Board.

If a spring contributes to a flowing stream, a
permit from the State Water Resources Control Board must be obtained,
unless the water can be used under a riparian water right.

Public Trust

The “public trust” is a legal concept
imported from Roman law into English common law. From this origin
in Roman law, the concept of the public trust evolved, under which
the federal government owns all of its navigable waterways and the
lands lying beneath them as trustee of a public trust for the benefit
of the people. The states acquired title as trustees to such lands
and waterways upon their admission to the union (supra.) Historically,
the trust applied only to navigation and similar uses in navigable
waterways. However, in National Audubon Society v. Superior Court
of Alpine County (1983) 33 Cal. 3d 419, 189 Cal.Rptr. 346, the California
Supreme Court expanded the trust to include public interests in
non-navigable waterways. Thus, the scope of the public trust in
California is very broad.

Any use of surface water in California is theoretically
subject to the public trust. In addition, any member of the general
public has standing to raise a claim of harm to the public trust.
The harm alleged can be based upon a number of factors, which include
aesthetics, fishery, ecological disruption, etc. If successfully
argued, the application of the public trust can, in effect, amend
or modify a water right.

DISCLAIMER

The information contained herein is provided for general information
purposes only and is not intended to convey a legal opinion nor
legal advice for any particular case or situation.

This information does not represent a complete discussion of all
the issues relating to water rights. Do not rely on the information
contained in this web site. Since every individual's factual situation
is different, and can significantly affect the legal analysis, independent
legal advice regarding specific situations from a licensed attorney
familiar with water law is strongly encouraged.

Gallery and Barton, a Professional Law Corporation and its attorneys
make no claims, promises, or guarantees about the absolute accuracy,
completeness, or adequacy of the contents of this web site and expressly
disclaim liability for any errors and omissions in the contents.
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but not limited to the warranties of rights, title, merchantability,
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is given with respect to the contents of this web site.

Mr. Barton is only
licensed to practice law in California, therefore the information
contained in this web site would not be applicable to water right
issues located outside of California.

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create an attorney-client relationship. Nothing sent to this law
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